Defamation Bill

Debate between Lord Browne of Ladyton and Lord Mawhinney

Thursday 17th January 2013 Grand Committee

[Lord Mawhinney]

My Lords, at the end of his last contribution to the noble Lord, Lord Browne of Ladyton, the Minister talked about the importance of procedural change. This amendment is about procedural change. The committee got frustrated at times because to us the single most important thing was cost and bringing this legislation to literally millions of people who are at present prevented from getting coverage by the law. I will not take the time of the Committee at this late hour to read into the record the evidence that the Minister gave when he came, but we were encouraged that he was of a similar mind to us. The Government have the power to interact with the senior levels of the legal profession and the judiciary to require them to do things. We were hugely impressed by the cost attached to the management structures of the judiciary at this time. They could be streamlined, enhanced and quickened, and all of that pulls down the cost and therefore makes legislation available to millions who at the moment are priced out of the market.

I know my noble friend is going to tell me about the Master of the Rolls. I understand all of that. I have noted very carefully that he hopes to be in a position to press a button of some description by October of this year and I am sure we are all going to hold him to that. But I cannot let this opportunity pass. This looks on the face of it a fairly obscure, perhaps mildly boring, not very important amendment but it may be just about the most important amendment that the committee made and it comes with a lot of feeling, a lot of passion and a lot of importance. If Parliament does not legislate to make remedy available for the millions, it is legitimate to question what Parliament is all about. If my noble friend will accept this amendment and then put his shoulder to the wheel and push aside those who will line up to thwart him in every direction, he will have the thanks not only of our committee, not only of this Committee, not only of the House and Parliament; he will have the thanks of millions and millions of people who will look at our deliberations tonight and think, “It is all very well for them but we do not have any say in this procedure at the moment”. I strongly commend this amendment to the Committee.

[Lord Browne of Ladyton]

My Lords, on behalf of the Opposition, I wish strongly to associate myself with the amendment tabled by the noble Lord, Lord Mawhinney. It must be possible for Parliament through this Bill to find a conduit to the appropriate Rolls committee to express the unanimous view of Parliament that access to justice in this area must be improved and it can only be improved if we reform the way in which these cases are conducted to reduce the cost and delay of them. I am not entirely sure whether this is the appropriate way to do it and I do not think it matters to the noble Lord, Lord Mawhinney, whether it is. There must be a way of doing that without transgressing on the appropriate separation of powers. There must be some way of getting that message across. It is undoubtedly the case for those of us who have practised before the courts, whether in this jurisdiction or in other jurisdictions, that whether there is a specialist Bar, whether there is a complicated area of the law, whether there are litigants with deep pockets, the one thing that is most important to the efficient conduct of business is the maximum appropriate judicial intervention to concentrate the minds of parties on the real issue and to get them to resolve those issues in the minimum of judicial time. If we can find some way of doing that, while at the same time ensuring that those who do not have deep pockets have a right to redress, we will have done our work. Raising the bar, simplifying and explaining the defences and preparing the best suite of defences the world has ever seen will mean nothing if all we have done is recreate the issues of dispute for the same tediously long processes and complicated debates that eat up vast amounts of people’s time and resources. They also destroy lives—much more quite often than the remarks that were made about them in the first place.

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Mawhinney

Tuesday 15th January 2013 Grand Committee

[Lord Browne of Ladyton]

My Lords, I support the direction of travel that the amendment proposes, but this is not yet a complete process. Let me explain. I had the benefit of a long engagement with the noble Lord, Lord Hunt, in the early stages of the evolution of this amendment, and I gave him my views on this issue, which were quite strong. My understanding was that the purpose of the early amendment that was put to me was to create an environment in which there could be a debate or dialogue on an issue of controversy, in the public domain and in a moderated fashion, but which would attract privilege.

I expressed my concerns to him about that as an idea, and I summarise them in this fashion: while I agree that there needs to be the sort of debate among scientists, technical people and academics that the noble Lord, Lord May, robustly describes regularly to us, to the benefit of our deliberations, I am not entirely sure that it is in the interests of everyone who is affected by that for it be taking place in public. To give an example off the top of my head, if someone had concerns, based on good technical analysis and engineering understanding about the braking system of a mass-produced motor vehicle, then if I were a shareholder in that firm I would be very unhappy if that debate took place in the public domain before it was settled. I would be equally unhappy if we as legislators allowed that public debate to have privilege, because one could guarantee that no one would buy that motor vehicle while that debate was taking place and it could ruin a business. I am sure that others can think of many other examples that would be entirely inappropriate. So I have reservations about that.

However, if the amendment is not seeking to generate that sort of debate or a forum for that sort of debate and to allow it to attract privilege, and I do not hear that it is, there is now an interesting evolution of the peer-reviewed statement in scientific and academic journals that Clause 6 was designed to create the opportunity for, and to allow there to be privilege. It could properly reflect the changing, modern environment that we live in, where there is the possibility that the organisations that have been given this role, if they all accept it, could provide an opportunity for healthy debate and discussion—an appropriate point in the public domain that would aid academic consideration, and which would aid technical and scientific discussion. I have a number of problems with that and I do not think that we should conclude our debate on this issue at this stage. I hope that the Minister will approach this in the way in which he approached Clause 5 and say that the Government will take this away and think about it.

My understanding of Clause 6 is that it depends on the fact that what is published in scientific or academic journals—they could be e-journals—is entitled to privilege because it is peer reviewed. It does not reach the public, a wider audience, until a controlled discussion has taken place among those people qualified to do so. People who work at that level in a discipline are used to reviewing each other at peer level. We have significant confidence in them. Those of us who do not have the expertise in particular disciplines rely on them heavily as regards what, for example, the BMJ, will allow to be published.

If another institution, or a set of institutions—for example, the institutions identified by these amendments —is willing to take on the responsibility of that level of peer review before it allows these statements to be published, I am entirely in agreement. If that generates a controversial debate, we should consider whether that debate started by a peer-reviewed assessment should attract a level of privilege. I do not know whether other Members of the Committee will share my view that this is a really interesting idea but that it needs a lot more work. I am not in a position to do that significant amount of work but the one question that I ask the noble Lord, Lord Hunt, is: what is the equivalent of this addition of peer review? We on these Benches could not support a view on an issue of controversy, which potentially could be defamatory, being exercised in a privileged environment just because it was a view held among technically gifted people, scientists or academics. I think that it could be just as damaging.

[Lord Mawhinney]

Listening carefully to what the noble Lord, Lord Browne, has said, would it be fair to summarise that he is saying that further work needs to be done on the definition of the word “recognised”?

[Lord Browne of Ladyton]

With respect to the noble Lord—I am always anxious to agree with him because of the role that he played in relation to the formation of this area of policy—it may be my fault, although I am not sure whether it is my accent or the content of what I am saying. Perhaps I have not explained myself well enough.

The noble Lord’s summary is part of my concern, although I have a broader concern. In the light of the hour and the amount of time that we have already spent on this matter, and the fact that I suspect that we will find time to get back to this in more detail—perhaps offline, as it were, from the Committee—I will not lay out all the detail of my concerns about this. I have a number of them and that is one of them. My fundamental concern is that there is a hurdle to overcome before publication in the clauses as drafted: peer review. I am not entirely sure that, if we expand it into statements that are published on websites belonging to those other institutions, those statements will have the same imprimatur of peer review before they are published. If we could find a way to do that, I would be happy to support the proposal but it is complicated.